The Mavi Marmara A Re-Examination of Israel’s Use of Deadly Force

This paper concerns itself in the main with the case of the Mavi Marmara referred to the International Criminal Court by the Union of the Comoros following the murders of 9 civilians aboard the humanitarian ship which was flying the Turkish flag in international waters. The unlawful and aggravated (Falk, referred to in this paper later on) attack of 31st May 2010 on the Mavi Marmara remains an eidetic image in the minds of activists and human rights groups. It is crucial to remind ourselves that “The primary mission of the International Criminal Court is to help put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, and thus to contribute to the prevention of such crimes.” Furthermore, we must equally remember that “A well-informed public can contribute to guaranteeing lasting respect for and the enforcement of international justice.”[1]

If and when our political leaders fail to enforce the rule of law, we the electorate have a moral duty to make them do so because pressure is as pressure does. I say this as a member of the public, I am a painter but use that skill to understand the pictures that need portraying of heinous crimes that have remained unpunished.

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Recent developments have momentarily, though rightly, shifted the focus away from the Mavi Marmara to the case of another ship (a US vessel named Challenger I). “[T]hree Americans have filed a civil suit against the state of Israel … for “the harm and distress, injuries and losses caused by the attack.” On 12th January 2016, Steven Schneebaum, a team member of attorneys speaking on behalf of the plaintiffs, announced during a press conference held in Washington that “States are generally immune from suit in United States courts. But that immunity is waived in a number of circumstances.” adding “When agents of foreign governments commit wrongful acts in the United States that cause personal injury, and egregious acts against U.S. nationals anywhere in the world, they are not entitled to immunity …” Importantly, Schneebaum also stated that “both exceptions apply to the facts of Challenger I case because a U.S. flagged ship falls under U.S. jurisdiction.” concluding that “The case is ground-breaking as it relies on an exception in American law that allows lawsuits to be brought against foreign states, in limited case.” Furthermore, Ralph Steinhard, a professor of international law at George Washington University who is also part of the plaintiffs’ attorneys team substantiated the fact that “The attack on Challenger I was a patent violation of international law, including the laws of war, human rights, and the law of the sea…” [2]

Israel has to-date refused to accept liability or responsibility and therefore on those grounds refuses compensation to the victims’ families. Challenger I, a US ship, remains in the custody of Israel. UK based lawyer, Sir Geoffrey Nice, thinks that this is an important or “real test” for the enforcement of international law. [3]

The above lawsuits are in addition to the Furkan Dogan lawsuit. The 18 year old with dual nationality (American Turkish), whose family sued “former Israeli Defence Minister Ehud Barak on war crimes charges.” [4] was the youngest victim killed on the Mavi Marmara. Furkan Dogan remains a “political Symbol.” Dogan sustained a total of five gunshot wounds fired by members of the IDF from a distance of 45 centimetres to the “nose, back, back of the head, left leg, and left ankle were the cause of his untimely and unlawful death.” [5]

Mavi Marmara and the ICC

If Israel compiles a report on any of its actions involving yet another atrocity, you know a first action will be not (as one might assume) to buy black ink to fill page after spurious page with propaganda. No, it is tins and tins of white paint, because you know it is guaranteed to be a white wash.

To understand Israel is to understand a mechanism, not an organic sovereign land breathing in and out, in and out, in and out with the rhythms of life, wafting a sweet breeze of good will toward all humanity or allowing a collective Palestinian consciousness to blossom into freedom. Israel’s is not the strong heart beat of a nation state alive to its international lawful responsibilities but the industrial whirr of a soulless propagandist machine intent on ruining the lives of as many Palestinians as inhumanely as possible, in the occupied Territories.

Let’s be real from the outset for as found by the Human Sciences Research Council (HSRC) Israel is not to be trusted. “Israel bears the primary responsibility for remedying the illegal situation it has created. In the first place, it has a duty to cease its unlawful activity and dismantle the structures and institutions of colonialism and apartheid that it has created.” [6] Just as it, Israel, bears the primary responsibility for the planned attack and murder of nine Turkish civilians on the Mavi Marmara.

Here, then, we re-examine the “maritime incident” because it has been and remains “problematic” to near-on impossible to bring any alleged Israeli criminal before an authoritative court because of Israel’s legal obfuscations, the international community’s supine position in regard to those obfuscations, and for the ICC to see how many laws, deliberations and findings they can place on a pinhead before seaming a garment, tailored in law to clothe a team of lawyers and judges prepared and competent to set a precedent through right judgement against the use of deadly force by Israel against defenceless citizens who were on a humanitarian mission to bring tonnes of aid to Gaza as a result of the continued illegal blockade of Gaza.

The UN General Assembly Human Rights Council in September 2010 was clear that the flotilla posed no threat to Israel’s security and therefore the murderous assault “‘cannot be justified even under Article 51 [self defence] of the UN Charter”. The planned attack and murder of defenceless foreign civilian subjects was an affront to a collective sense of injustice and conscience where another systematically planned violation of international humanitarian law, and human rights laws took place, as they have taken place in Palestine every day since 1948 and the Nakba.

How can we read from this of the ICC Article 53 (1) 6 Nov 2014 in the Executive Summary Point 3 and not feel exacerbated: “The Prosecutor has concluded that the information available provides a reasonable basis to believe that war crimes were committed on board the Comorian-registered vessel (the Mavi Marmara) during the interception of the flotilla on 31 May 2010. However, the information available does not provide a reasonable basis to proceed with an investigation of the situation on the registered vessels of Comoros, Greece, and Cambodia that arose in relation to the 31 May 2010 incident.” [7]

This ruling remained in the twilight zone of injustice until according to Keren Aviram writing for The Institute for National Security Studies (INSS) August 6 2015 noted: “On July 16, 2015, a Pre-Trial Chamber of the International Criminal Court (ICC) accepted the request by the Union of the Comoros to review the decision by the ICC prosecutor not to investigate the incident of the Mavi Marmara flotilla to Gaza, and requested that the prosecutor reconsider her decision.” Further, “On July 27, 2015, the prosecutor submitted a notice of appeal and rejected the Chamber’s request that she reconsider her original decision and reopen the probe.” [8]

What holds one’s attention is this “The prosecutor erred in her assessment of the factors relevant to the determination of gravity under article 17(1) (d) of the Statute.” The prosecutor rejects this in contextual style but absolves her reasoning as to the gravity of the crimes committed to such an extent and so extant from the murderous realty that she has overcome, it seems single-handedly the laws of Newton. All is suspended except the suffering of the grieving families of the victims of the Mavi-Marmara and the stoicism of the deeply conservative and religiously-tight community that is Gaza today.

As one reads the body of the text of the article by Aviram, we come upon an assemblage of constructs that interfere with our contextual primers of experience, insight, and common sense, that a grave crime has obviously been committed, and that the crime dovetails with a pattern of a planned continuum of Israeli criminal violence against Palestinians and indeed in this case the Turkish American nationals aboard the Mavi Marmara.

We are tied and bound in a maze of legal (or otherwise) constructs, constructs, constructs, without it seems Ariadne’s red ball of string to find our way out of a legal labyrinth and indeed deal with the self sacrifice of so many by the ritual continuum of Israel killing of Palestinians as the courts of justice deliberate how they can keep truth locked down in a legal maze indeed haze of discouraging deliberations.

Constructs such as “faulty interpretation, margin of discretion, unique context, and absence of their [IDF] intent to kill”, and where arguments are “insufficiently reason[ed]”, and the like. This means that though we have witnessed “the most serious crimes of international concern.” which scream at us with all the power of Edvard Munch’s The Scream or Picasso’s Guernica. The ICC ducks the issue for it fears for, (as Avrim percolates), “the Court to be swamped with cases.” This would be “problematic”. As it would (indeed has) delegitimized the current status of the ICC.

Israel’s continuum

The continued interest in just what happened on the 31 May 2010 just before and after the IDF boarding of the Mavi Marmara puts pressure to regard the crimes of Israel as a whole and which have collectively and overtime constituted one of the worst continuums of crimes against humanity. Surely, what has happened to-date in the occupied Palestinian Territories meets with the criteria just why the ICC was established “prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.” recognised and adopted by the United Nations General Assembly in 1948 (UNGA).[9]

It is ironic, is it not, that as the UNGA adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, Israel began the Nakba and a litany of crimes that defy description.

Israeli leaders in the 20th and the 21st century should be held responsible for such heinous crimes, and where, actus reus non facit reum nisi mens sit rea, (the state of mind indicating culpability which is required by statute as an element of a crime)[10] looms on the horizon for the political leaders of Israel their preoccupation with the illegal occupation, the proliferation of their military industrial and intel complex, and Israel’s military leaders who plan for such attacks well before an atrocity is committed and the perpetrators’ crimes psychologically commuted a-priori and not after the fact: ex post facto. Israel is only (legally) inward looking in its hand wringing, self righteousness.

An Israeli was never going to stand in guilty anguish before the ICC. The response to these unlawful and unwarranted acts by from The Israeli Deputy Foreign Minister Tzipi Hotovely is typical of the self denial syndrome that obstructs all legal considerations of outrageous crimes committed by Israel: “It’s very puzzling to me why the International Criminal Court would decide to open a probe into soldiers who defended themselves against brutal attacks by terrorists aboard the Marmara,”[11]

Make Up Your Own Mind:

Israel’s The Public Commission to Examine the Maritime Incident of 31 may 2010 Second Report -The Turkel Commission.[12] (TTC) Published Feb 2013, is so dense that one thinks it is going to finish with a thorough examination of the atom or (sorry!!! they know all about the atom, how to split them and how to avoid the strictures of The Non Proliferation Treaty -NPT) the String Theory and Black Hole Radiation. Always complexity (read opacity) never clarity is the mantra practiced by Israel to deny its crimes whilst planning for others.[13]

So of its 476 pages stuffed with laws (in the clear cool light of justice) known, unknown, and even known unknown known’s we come at last to page 432 the intro into material evidence examining the incident where: “the Commission was… asked to address the manner in which the mechanism to examine and investigate complaints and claims of violations of international humanitarian law generally practiced in Israel.”

Good for them, because clearly international humanitarian law and human rights law, is generally violated by a belligerent Israel in the occupied Territories on a daily basis. The violent Israeli narrative of subjective denial, and factual circumvention, has been and remains the greatest stumbling block to even the idea of an evolving, now atrophied peace process.

In an article by Gill Cohen for Haaretz, Sept 8th 2014[14], on TTC findings, Cohen identifies that the “report, published in February 2013, concluded that “in general,” Israel’s investigative system meets the demands of international law.” However, “B’Tselem and Yesh Din human rights groups say they have no confidence in military probes into suspected crimes against Palestinians,” and further: “Yesh Din Executive Director Neta Patrick said she considers the system “broken,” and that “adopting the Turkel recommendations could have been a very good start” toward fixing it. “Investigations must be real and effective, not investigations for appearance’s sake,” she added.

Investigations, reports, recommendations, still as I write Israel commits egregious crimes whilst commuting others. Compiling reports on international law whilst simultaneously breaking international law, poses somewhat of a paradox does it not? Investigations then, are, for the past and present Israeli regimes only for “appearance sake”.

This is best illustrated by the interminable blockade of Gaza. Granted self-governance pursuant with the Oslo I accords, or Declaration of Principles (DOP) of 1993, in 1994 Gaza even after (Oslo accords I and II) did not guarantee or promise Palestinian Statehood the (we will withdraw our troops and dismantle settlements by laying siege to Gaza, and resettling the Israeli settlers in illegal settlements in the West Bank) Sharon Disengagement Plan of 2005 (sometimes referred to as the “Gaza expulsion” or “Hitnatkut” having several root meanings [15] but translates as (roughly) “cutting loose” has done nothing of the sort as collective punishment of the besieged men, women and children of Gaza accelerates. The noose around the necks of the impoverished Gaza populous was never severed only tightened as collective punishment, as the charge of genocide from numerous informed quarters mounts.[16]

As reported by Amnesty International: “Israel maintained its air, sea and land blockade of Gaza, imposing collective punishment on its approximately 1.8 million inhabitants and stoking the humanitarian crisis. In the West Bank, Israeli forces carried out unlawful killings of Palestinian protesters, including children, and maintained an array of oppressive restrictions on Palestinians’ freedom of movement while continuing to promote illegal settlements and allow Israeli settlers to attack Palestinians and destroy their property with near total impunity.”[17] This is wilfully ignored by the High Contracting Parties to the Fourth Geneva Convention, the UK shamefully being one of the parties. “Regarding the consequences of this failure to act to ensure protection of the Palestinian civilian population perpetuates the current cycle of violence and may ultimately result in a state of total lawlessness in the region.[18] This warning came in 2002 and is this not the catastrophic case in 2016 across the Middle East & North Africa (MENA) as millions including half of the Syrian population is displaced internally or externally with no lawful, peaceful, and humanitarian end in sight, as Europe dissuades these persecuted suffering souls from fleeing endless conflict.

The US and Europe issue sever (dire) warnings as to the threat level to national security as ISIS operatives apparently mingle with the persecuted refugees (thus dissuading refugees) fleeing conflict across the MENA. This happens all the time and allows bigots such as Trump to issue statements calling for a blanket ban on Muslims entering the US, undermining Obama enlightened step to visit a mosque and state ““Most Americans don’t necessarily know, or at least don’t know that they know, a Muslim personally. And as a result, many only hear about Muslims and Islam from the news after an act of terrorism, or in distorted media portrayals in TV or film, all of which gives this hugely distorted impression,” [19]

Islam as practised by the overwhelming majority of Muslims is a faith in Allah and in the goodness of other human beings for: “Whoever kills a person [unjustly]… it is as though he has killed all mankind. And whoever saves a life, it is as though he had saved all mankind.” (Qur’an, 5:32)

Returning to the infamous “maritime incident” and the so-called Turkel Report, the “brief summary” clears the mind, focuses on the shear injustice of this Israeli worthless report which has an abbreviated dalliance with truth as it dances with facts of the murder of innocent civilians in point 4 of the Brief Summary: “On the deck of the Mavi Marmara, the IDF soldiers confronted extreme violence. Two soldiers were wounded by gunfire, three soldiers were taken to the hold of the ship after they had been wounded, and others suffered serious injuries. The IDF soldiers responded with physical force, shooting from both less–lethal and lethal weapons. As a result of these events, nine of the flotilla participants were killed, approximately 55 of them were wounded, and nine IDF soldiers were wounded.”

UN calls for the formulation of facts

On the 2nd Aug 2010, the UN called for a formulating of the actual facts. Former premier of New Zealand Sir Geoffrey Palmer headed a panel to review the tragic events and Israel’s use of deadly force this was summarily announced by the UN Secretary-General August 2 2010 and published Sept 2011 [20] it was not: “acting as a Court and was not asked to adjudicate on legal liability. Its findings and recommendations are therefore not intended to attribute any legal responsibilities. Nevertheless, the Panel hope[d] that its report may resolve the issues surrounding the incident and bring the matter to an end.” Here we find a problem (as rightly flagged up by professor Richard Falk in that Palmer was a professor of environmental law where in fact a thorough understanding of laws governing the reasons for war and how a war is/was to be conducted jus ad bellum/jus in bellow was needed (even though the citizens aboard the Mavi Marmara were not sailing to war) and law governing unlawful acts in international waters.

Also Richard Falk, American professor emeritus of international law and Special Rapporteur on human rights in the Palestinian territories since 1967, expressed that Alvaro Uribe, whilst in office as President of Columbia had an appalling human rights record and was involved in arms deals and diplomacy with Israel and was awarded by the American Jewish Committee the ironically named Light Unto The Nations Award. Uribe’s Presidential campaign slogan was “was firm hand, big heart.” Falk concluded that: “His presence on the panel compromised the integrity of the process, and made one wonder how could such an appointment be explained, let alone justified. Turkey’s agreement to participate in such a panel was itself, it now becomes clear, a serious diplomatic failure. It should have insisted on a panel with more qualified, and less aligned, members.”[21]

It is today 15th Feb. 2016. There is no resolution in sight and nothing has bought the matter to an end because Israel denies culpability as it always does and provides inadequate testimony as it always has.

The Palmer Report

Under the heading: Facts, Circumstances and Context of the Incident the panel of the Palmer Report found in paragraph vi: “Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable”. Also and damningly (one would think) we find in paragraph viii: “The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable. Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the Panel by Israel for any 5 of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back,or at close range has not been adequately accounted for in the material presented by Israel.” (My emphasis)

Contrary to the evasive Turkel Report, the Palmer Report was presented with a detailed report by the Turkish National Commission of Inquiry Published Feb 2011 Ankara. Titled: Report on the Israeli Attack on the Humanitarian Aid Convoy to Gaza on 31 May 2010.[22] According to the Palmer Report, under the heading, The Flotilla paragraph 27: “In the Turkish Commission’s account, there was a diplomatic understanding reached between Turkey and Israel that the vessels in the convoy would not force a breach of the blockade and would change their destination to the port of Al-Arish if necessary, and that Israel would refrain from using force against the vessels”.

Diplomatic exchange

From the Palmer Report is part of the actual account of the diplomatic exchange: “On 28 May 2010, the Undersecretary of the Turkish Ministry of Foreign Affairs told the US Ambassador in Ankara that contacts with the convoy’s Turkish participants were starting to bear fruit, and that the IHH representatives agreed to eventually dock at Al-Arish. But the convoy would first try to approach the Gaza Strip and, if necessary, alter its course to Al-Arish. The Undersecretary also cautioned that Israel should act with maximum restraint and avoid using force by all means. He asked the US Ambassador to pass this message on to Israel. A few hours later, the Director General of the Israeli Ministry of Foreign Affairs called the Undersecretary to express their accord to the above.” However and according to the transparent account of the Turkish Commission (TC): “The Israeli forces mounted a full-fledged and well-planned attack with frigates, helicopters, zodiacs, submarines, and elite combat troops heavily armed with machine guns, laser-guided rifles, pistols and modified paintball rifles. The Israeli soldiers shot from the helicopter onto the Mavi Marmara using live ammunition and killing two passengers before any Israeli soldier descended on the deck.” Damning, damning, damning.

Further: “passengers only exercised a lawful right of self-defence, without any firearms, against the armed attack of the Israeli forces. Once the Israeli forces took over the vessel, instead of exercising caution and restraint, they continued to brutalize and terrorize the passengers, abusing them physically, verbally and psychologically. The passengers were beaten, kicked, elbowed, punched, deprived of food and water, handcuffed, left exposed to sun, sprayed with sea-water for hours, and denied toilet access. During and after the ten hours of sailing to the port of Ashdod in Israel, most of the passengers were kept handcuffed. Some of them were stripped and searched; women were subjected to sexually humiliating treatment; one of them, a journalist, was forced to strip multiple times and a metal detector was placed between her legs.” (TC)

I leave you with the clear minded Richard Falk: [23] “the underlying blockade imposed more than four years ago on the 1.6 million Palestinians living in Gaza was unlawful, and should be immediately lifted. On this basis, the enforcement by way of the 31 May [2010] attacks was unlawful, an offense aggravated by being the gross interference with freedom of navigation on the high seas, and further aggravated by producing nine deaths among the humanitarian workers and peace activists on the Mavi Marmara and by Israeli harassing and abusive behaviour toward the rest of the passengers.”

[3] Sir Geoffrey Nice has also said “”This case, alongside the others, the one in the International Criminal Court and the one in California would have the following very clear political outcome: If Israel has enjoyed special privileged status of impunity because of protection by the United State of America, then that impunity is on the way out,” http://www.imemc.org/article/74573.

[6] Human Sciences Research Council (HSRC). Democracy and Governance Programme Middle East Project. Executive Summary. Occupation, Colonialism, Apartheid? A re-assessment of Israel’s practices in the occupied Palestinian territories under international law. May 2009 Cape Town, South Africa.

[9] Understanding the ICC, p 3, https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf . Regarding the matter of ‘continuum’, “The U.N Mission Report (UNMR) on the Israeli operation in Gaza between December 27th 2008 and 18th January 2009 highlights that all Israel’s operations must be viewed not as isolated moments in history where Israel feels threatened and then responds but, operation[s] that decidedly fit “into a continuum of policies aimed at pursuing Israel’s political objectives with regard to Gaza and the Occupied Palestinian Territory as a whole.” and “The continuum is evident most immediately with the policy of blockade that preceded the operations [i.e Cast Lead] and that in the Mission’s view amounts to collective punishment intentionally inflicted by the Government of Israel on the people of the Gaza Strip.” (UNMR). For more information please see my article titled ‘oh Captain my Captain, America’s Aid for Israel’s Political ‘Continuum’’, published among others in Facilitate Global (http://facilitateglobal.org/archives/1653) and the Palestinian Chronicle (http://palestinechronicle.com/old/view_article_details.php?id=17280)

[13] The first report issued Jan 23, 2011 “cleared the government and military of wrong doing” in fact, it was the “passengers [who] were to blame for the violence.” Just as one might suppose the Palestinians of Gaza are to blame, just by the fact of living in Gaza; for the illegal and now deadly blockade of the Gaza Strip?